82 Pa. Super. 167 | Pa. Super. Ct. | 1923
Lead Opinion
Argued October 19, 1923. Plaintiff sought compensation for goods lost in transit by defendant carrier, and has judgment on his verdict. Appellant contends it was entitled either (1) to judgment n.o.v. or (2) to a new trial.
(1) The undertaking to carry was admitted. The defense was that the property was stolen. The jury found the loss occurred in circumstances constituting negligence, which, the record shows, was the single point contested at the trial; it was the duty of the jury to find the fact. Accordingly, neither binding instructions for appellant, nor subsequent judgment n.o.v. would have been proper. *169
(2) On the day judgment n.o.v. was refused, appellant withdrew its motion for a new trial. Two weeks later, judgment was entered on the verdict. Still later, at the same term, appellant filed what it called a petition for reargument, alleging the trial, the verdict and that motions for a new trial and for judgment n.o.v. had been dismissed; it averred that at the trial "no evidence or proof of damage was produced," and asked the court "to grant a reargument in this case upon a motion for a new trial......" As the motion for a new trial had been withdrawn, the petition, of course, was not accurate; and as the plaintiff already had a judgment regularly entered on the verdict responsive to the issues made by the pleadings, he had a complete adjudication in the court below of the matters in suit, so that there was nothing to be reargued. Even if we consider the proceeding as one to open the judgment, the petition would be insufficient because it alleged no defense to the action nor stated what the value of the goods was. There was no abuse of discretion in dismissing that petition.
Judgment affirmed.
Dissenting Opinion
I am constrained to dissent from the opinion of the majority of the court, because, in my judgment, it would be establishing a dangerous precedent in practice.
Plaintiff's action was to recover the damages it had sustained by defendant's failure to deliver goods entrusted to it for carriage. While in form, ex contractu, it was essentially ex delicto in character. The gist of the action was the negligence of defendant.
When the Practice Act of 1887 was in force it was decided in Corry v. Pa. R.R. Co.,
The Practice Act of 1915 (P.L. 483) makes a clear distinction, as respects affidavits of defense, between actions of assumpsit and actions of trespass. In the latter, judgment cannot be taken in default of an affidavit of defense or for want of a sufficient affidavit of defense: Smith v. Wertheimer,
In Parry v. First Nat. Bank of Lansford,
In the present case the plaintiff's statement, in its opening, claimed the sum of $900 with interest from March 11, 1921, and in its closing paragraph alleged: "Wherefore plaintiff brings this suit to recover the sum of $900 with interest as aforesaid." That was all it said on the subject of damages. There was no averment that the goods delivered to defendant for carriage were of the value of $900, or any statement as to their value. *171
At the trial, plaintiff's entire proof consisted in offering in evidence paragraphs one and two of its statement, which were admitted in the affidavit of defense. Paragraph (1) averred that defendant was a carrier of goods; paragraph (2) that plaintiff delivered to defendant at Philadelphia, on March 11, 1921, three cases of lithographic stones which defendant contracted to carry and deliver to a certain consignee in New York.
Plaintiff did not even offer any proof that defendant had failed to deliver the goods thus received by it for carriage. On this state of the evidence defendant was entitled to the nonsuit which it asked. This being denied, defendant produced evidence, on its own behalf, which justified the submission of the case to the jury on the question of negligence. But not an iota of testimony, of any kind, was produced as to the value of the goods lost or the plaintiff's damages.
Yet the trial judge in his charge took it for granted that the amount claimed in the statement was in evidence under the pleadings, for he said to the jury: "The plaintiff brings this action to recover from the defendant the value of certain merchandise which was admittedly shipped by the plaintiff to the City of New York, the value being placed at $900."
The plaintiff's averment as to the amount of his claim was not in evidence and would not have been admissible if it had been offered. If there had been an averment in the statement as to the value of the goods and it had not been denied in the affidavit, the paragraph of the statement containing it would have to be offered in evidence before it could be considered by the jury: Buehler v. U.S. Fashion Plate,
In my opinion, the error was too flagrant and too basic to support this judgment and a new trial should have been awarded.
Judges ORLADY and PORTER join in this dissent.